The High Court has the power to expunge remarks made by a Magistrate in a proceeding under Section 144, Criminal Procedure Code, when the petitioner was not a party to the proceeding and was not given an opportunity to explain his conduct.

Sarjoo Prasad, J.

1. This application relates to the expunging of certain remarks made by the Sub-Divisional Magistrate of Aurangabad in an order disposing of a proceeding under Sec.144, Criminal P. C. The petitioner was not a party to the said proceeding and yet it is said that the learned Magistrate made those unwarranted and un-justified remarks without making him a party to the proceeding or giving him an opportunity to explain his conduct. The petitioner is an Honorary Magistrate of the sub-division and he is also the Manager of the Kunda Estate, known as the Bengali Estate, in the district of Gaya. The circumstances which led to the proceeding under Sec.144, relate to a dispute with regard to an area of about 66 bighas of land situate in village Sansha, police station Daudnagar, in the sub-division of Aurangabad. The petitioner states that 19 bighas and odd of these lands belonged to one Rameshwar Gosain, of which the Kunda Estate and other co-sharers were the landlords. The Estate obtained a decree for rent against this Rameshwar Gosain and, in execution of the said decree, the lands in question were sold and purchased by the decree-holder landlord of which the landlord obtained delivery of possession sometime in 1989. It is then stated that in 1940-41, the landlord, of which the petitioner is the Manager, settled the said lands measuring 19 bighas and odd along with the other lands which have been recorded as gkairmazruamalik with Ramchander Ahir, Bharat Ahir and others. It appears that subsequently in August 1949 there was a proceeding under Sec.144 between these settlees under the landlord and the outgoing tenants Rameshwar Gosain and others, in which proceeding the settlees were party l while Rameshwar Gosain and others were party 2. In that proceeding, an application was filed on behalf of the Kunda Estate by the petitioner supporting the settlement in favour of party 1 to the proceeding. The learned Magistrate disposed of the proceeding on making a local inspection, and the entire finding appears to have been based upon the local inspection made by the Sub-Divisional Magistrate himself. The petitioner alleges that a few months before the initiation of the 144-proceeding, party 2, Rameshwar Gosain and others had filed a complaint against the settlees and also against the men of the landlord in which they complained that the members of party 1, the settlees, were trying to dispossess Rameshwar Gosain and others by force. In that case, the complaint was dismissed by the Sub-Divisional Magistrate himself in which he found that the outgoing tenants, Rameswar Gosain-and others had no right and interest in the lands in question and that they should, if at all, have recourse to civil Courts. The petitioner alleges that, in view of that decision, the 144-procseding should not have been decided against the new settlees, who were party 1 in that case, and the learned Magistrate did so merely because he was inimical to the petitioner and, in the coarse of his order made those unwarranted observations. It appears that party 1, to the 144-proeeeding had moved the District Magistrate against the order under Sec.144, but the learned Additional District Magistrate, while disposing of the application, refused to interfere because the order under Sec.144 had spent its force, though the Additional District Magistrate realised that the order of the Sub-Divisional Magistrate had been passed without properly or duly considering all the facts and circumstances relating to the dispute. The petitioner appears to have moved the District Magistrate also for expunging the remarks in question and for making a reference for the purpose to this Court. But the learned Additional District Magistrate of Gaya, who heard the said application, rejected the same on 11-4-1960, ob. serving that it would be immaterial to take any action on those observations, because he had already found when rejecting the application against his order under Sec.1